Opinion
I.D. No. 0303004588.
Submitted: December 7, 2007.
Decided: January 25, 2008.
Upon Consideration Of Defendant's First Pro Se Motion For Postconviction Relief Denied.
This 25th day of January, 2008, it appears to the Court that:
1. On November 11, 2003, Johnny Lopez ("Lopez") was convicted by a jury on the charges of Trafficking in Cocaine, Possession with Intent to Deliver Cocaine ("PWIDC"), Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia. The Court sentenced him to eighteen years at Level V, followed by probation. Lopez then sought to proceed pro se after his trial. After holding a hearing, Lopez was permitted to proceed pro se and file an appeal.
The Supreme Court permitted Lopez to proceed pro se and file a direct appeal by Order of the Supreme Court dated July 6, 2004. See Lopez v. State, 861 A.2d 1245, 1246 n. 1 (Del. 2004).
2. In his direct appeal, the Supreme Court affirmed the Superior Court's convictions and sentences. The Supreme Court first found that there was no illegal search and seizure of drug evidence used against Lopez at trial and that his arrest was supported by probable cause. The Supreme Court explained:
Id. at 1248-49. Notably, no warrant was needed because he had consented to allow police to enter his home at any time as condition of his probation. Id. at 1249.
[T]he testimony at the suppression hearing reflected that Lopez, as a condition of his probation, had given his consent to the probation officers to enter his residence. The record also reflects that those probation officers followed the proper statutory procedures for obtaining the administrative search warrant. . . . The record reflects Lopez' highly suspicious behavior when the police came to the front door, his refusal to cooperate with the officers, and what appeared to be illegal drugs found outside the house. Taken together with his positive urine test and the anonymous tip that Lopez was dealing drugs, the record reflects that it was reasonable for the officers to believe that Lopez was dealing illegal drugs. Applying the de novo standard of review, we conclude that, under the totality of circumstances, the established facts constituted probable cause for Lopez' arrest as a matter of law.
Id. at 1249 (citations omitted).
The Supreme Court also refused to address Lopez's ineffective assistance of counsel claim because he failed to raise it before the Superior Court.
Id. at 1251.
3. Lopez now raises two grounds in this motion. First, defendant argues that his counsel was ineffective because his attorney did not "use any memoranda" in support of his suppression motions or at any other point. He stresses that the officers who searched his premises and arrested him did not have probable cause to do so. Lopez also submits that the evidence was legally insufficient to convict him of PWIDC. Second, Lopez contends that his counsel was ineffective because he failed to call Lopez's probation officer as a witness.
Lopez has also filed a motion for a writ of habeas corpus arguing that his convictions were a product of an illegal search and seizure, and that his jury was selected in an unconstitutional manner. That motion is not before the Court, however, and the Court will not address either argument.
4. In response, defense counsel denies that he failed to submit memoranda in support of Lopez's suppression motion. Counsel identifies two written motions for suppression that he filed with the Court. Although the motions were denied on factual and legal grounds, he notes that he filed papers for both motions and had oral argument on the second motion, thereby preserving the appellate record and obviating the need for additional legal memoranda. Counsel also disputes Lopez's claim that his failure to call Lopez's probation officer as a witness was ineffective. He explains that Lopez, whose crime was alleged to have occurred on March 6, 2003, testified at his suppression hearing that he had not seen his probation officer during the month of March. Considering the defendant's own admission to failing to make his probation appointments, counsel's decision to refrain from having Lopez's probation officer testify was therefore reasonable.
Docket 50.
5. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
6. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply "to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
7. In this case, although Lopez's ineffective assistance of counsel claims are not procedurally barred, as explained infra, many of his arguments in support of these claims are barred. Specifically, Rule 61(i)(4) bars his argument that the police did not execute a valid search and seizure of his home because this has been formerly adjudicated by the Supreme Court in his direct appeal. Rule 61(i)(3) also bars his claim that the State did not provide evidence to sustain his conviction for PWIDC because he failed to raise this ground on appeal. Finally, Lopez's argument that the Superior Court never addressed his "conflict of interest" motion in his presence is barred by Rule 61(i)(4) because the Supreme Court has already considered this argument and explicitly rejected it. Accordingly, the Court will only address the ineffective assistance of counsel arguments related to counsel's alleged failure to use memoranda of law and counsel's alleged failure to call Lopez's probation officer.
See Lopez, 861 A.2d at 1248-49.
On appeal, Lopez argued that the evidence was insufficient to support only his conviction for Trafficking in Cocaine. The Supreme Court rejected this argument in any event. See id. at 1250.
Id. at 1249-50. The Superior Court, in fact, addressed Lopez's request to proceed pro se. The Supreme Court, however, found no error in the Superior Court's decision to reject his request outside of his presence after Lopez "became disruptive and refused to sign the waiver of counsel form." Id. at 1250.
8. To evaluate Lopez's ineffective assistance of counsel claims, the Court applies the two-part test of Strickland v. Washington. Under Strickland,
446 U.S. 668 (1984)
the defendant must show that counsel's representation fell below an objective standard of reasonableness, "and "that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." In applying the two-part Strickland test to a defendant's claim, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
9. In this case, Lopez's ineffective assistance of counsel claim — that counsel failed to submit legal memoranda — fails as a matter of law and as a matter of fact. As explained in his affidavit, counsel submitted two motions in writing to the Court. He also supported the second written motion with oral argument before the Court. As a result, Lopez's argument that counsel failed to file legal memoranda is simply inaccurate.
10. Even assuming arguendo that counsel failed to file "sufficient" legal memoranda on Lopez's behalf, the result would not have been different. All of the issues Lopez now raises were preserved for appeal and, in fact, argued before the Supreme Court, as noted in its opinion affirming the convictions. Thus, counsel's decision not to file additional legal memoranda was reasonable and would not have had any impact upon the result. In the end, the Supreme Court found sufficient evidence to support Lopez's convictions.
11. Lopez's second claim, that counsel was ineffective for failing to call Lopez's probation officer, is similarly unavailing. Lopez testified that he had not seen his probation during the month of March, when the crime for which he was convicted occurred. Thus, his probation officer would not have had any knowledge of Lopez's crime. Even had counsel called Lopez's probation officer, he could not have aided Lopez's defense. Accordingly, Lopez's second claim fails both prongs of Strickland.
12. For all of the foregoing, Lopez's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.
PEGGY L. ABLEMAN, Judge.
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